Kammerer v. Marino

FINCH, P. J.

This is an appeal on the judgment-roll alone from the judgment herein in favor of plaintiff.

The complaint states separately five causes of action. The first count alleges the delivery of a certain quantity of grapes by plaintiff to defendants at an agreed price. The

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second alleges that “at the special instance and request of defendants plaintiff furnished boxes for said grapes to the value of $1493.57.” The third alleges that “Phillip Ehersman sold and delivered to defendants at their special instance . . . 5876 pounds of grapes at $75 per ton,” and that Ehersman assigned his claim therefor to plaintiff. The fourth alleges that on the first day of December, 1921, the defendants were indebted to John J. Eammerer in the sum of $19.25 for work and labor and that he assigned his claim therefor to plaintiff. The fifth alleges that “plaintiff, . . . at the special instance and request of said defendants, performed work and labor for said defendants in the sum of $101.45.” Each count alleges the amount due and unpaid thereunder and that payment thereof was demanded and refused. The court found against appellants in accordance with the allegations of the third and fourth counts and also as alleged in the first count, except that a smaller quantity of grapes was found to have been delivered than was alleged. As to the second count, the court found that the amount alleged therein was due and unpaid from appellants to plaintiff “as the balance due and unpaid for materials for making boxes, to-wit: box lumber, laths and nails furnished by plaintiff to said defendants at their special instance and request, . . . and for transporting and trucking box lumber.” As to the fifth count, the court found that “plaintiff, by and through his minor son, David Kammerer, . . . performed work and labor in making and putting grape boxes or lugs together at the special instance and request” of appellants “in the sum of $311.45. That said defendants have paid to plaintiff on account of said work and labor the sum of $210, leaving a balance of $101.45 due” from appellants to plaintiff. Judgment was entered for the total amount remaining unpaid, “together with interest thereon from the 1st day of November, 1921, at the rate of seven per cent per annum.”

The appellants alleged certain affirmative matters in their answer to the complaint and the court made no direct finding thereon. Appellants contend that such omission constitutes error. Since the evidence has not been brought up, it must be presumed in support of the judgment that no evidence was offered to prove such affirmative allegations and therefore no findings thereon were required.